Lacking conviction

Club Cabo rape case comes unglued

It took a jury of four women and eight men less than two hours to find Wilbert Fish, the alleged perpetrator in the so-called Club Cabo rape case, not guilty Tuesday afternoon. The trial, as predicted in opening statements by Fish’s attorney, was dominated by “sex, lies and video tapes.”

Fish, 23, was arraigned March 11, 2005, on a felony charge of sexual intercourse without consent after police alleged they saw Fish with his hand down the pants of an unconscious 21-year-old woman.

It was Club Cabo’s extensive video surveillance system that provided the critical evidence for the defense, poking gaping holes in the testimony of two Missoula police officers and shredding the initial police report that led to the rape charge.

The prosecution’s prospects started going downhill early when officer Duncan Crawford admitted to giving false testimony. Duncan testified during direct examination by Deputy County Attorney Karen Townsend that by the time he and officer Ryan Ludemann walked into the club that night, there were 15 to 20 people on the dance floor and the lights were up and people were leaving the club. On cross-examination, defense attorney Morgan Modine played video for the jury showing Crawford and Ludemann walking into the club at 1:34 a.m. with the house lights still off and the floor packed with dancers. After viewing the tape, Crawford admitted his earlier testimony was false.

Bad went to worse for the prosecution when officer Ryan Ludemann, the cop who arrested Fish, took the witness stand. Ludemann was compelled to answer questions about his history of lying early in the proceedings when Townsend, in an attempt to get Ludemann’s troubled past out in the open, questioned him about a November 2004 case in which he’d cited a woman for driving with a suspended license. An investigation by city officials later revealed that Ludemann never actually saw the woman driving (his wife did, and phoned to tell him about it), and he later admitted he repeatedly lied to superior officers about the facts of the case.

During cross-examination, Modine pointed to Ludemann’s history of lying as one reason the officer could not be trusted, then introduced video evidence from Cabo’s surveillance system that raised serious doubts about Ludemann’s initial report of the rape.

In that report, and again in courtroom testimony, Ludemann stated he saw a man on top of a female on the bench seat in a booth next to the dance floor just before 2 a.m. on March 11, 2005. Ludemann said it looked like the two were “making out,” but as he got closer, he said, he noticed the woman’s left arm was hanging limp under the table. Ludemann said he saw that Fish had his right hand in the woman’s pubic area, “making physical motions that were consistent with sexual activity.” Ludemann said he pulled Fish away from the woman and Crawford escorted him outside. Next, Ludemann said, he tried to shake the woman out of unconsciousness. He said she tried to sit up but couldn’t without his assistance, and then he “carried her” out of the club.

Modine then played video that showed the woman walking across the dance floor on her own, just seconds after the alleged rape was supposed to have occurred, with Ludemann following her to a hallway near the dance floor. Ludemann and the woman appeared to have a conversation; he then placed his arm around her waist and the two walked out of the club.

“You know how important accuracy is when a man’s life is on the line?” Modine asked Ludemann, who, like Crawford, admitted to giving false testimony.

Club Cabo co-owner Bob Powell later testified that police investigators never asked to see surveillance videos from the night of the alleged rape.

The jury heard testimony from nine witnesses over the course of two days, including the alleged victim, who claimed to remember nothing about the alleged assault, before retreating to the deliberation room around 1 p.m. Tuesday. When they returned, Modine, Fish and Fish’s family members weren’t the only ones wracked with anxiety over anticipation of the verdict. Long-time business partners and restaurateurs Bob and Charlene Powell and Nick and Sue Alonzo had a vested interest in the outcome of the case as well.

“The financial ramifications [of closing Club Cabo] were there, but in my opinion, I was less affected by that than by the effect this case has had on our reputation,” Powell said after the trial. “That really has bothered me more than anything—the fact that it was all based on a lie by a trusted city official. Both officers lied under oath and their police reports were what the media based everything on.”

The entire proceeding was rife with TV-caliber courtroom drama. It got off to a rough start Friday after the Missoulian broke the news in that morning’s paper that Fish had been arraigned on a charge of witness tampering related to a second, unrelated, alleged rape. Fish was arrested and arraigned in December on that charge, which stemmed from an incident that occurred Oct. 31, 2005. Prosecutors tried to tie the additional charge (plus a related witness-tampering charge) to the Cabo case against Fish, but on Thursday, the day before the trial, Judge John Larson agreed to sever those charges from the Cabo case. Fish faces an additional trial on the newly reported charges.

“It wreaked havoc,” Modine said of the Missoulian article, after the trial’s conclusion. “We were lucky to find a jury.”

Jury selection took all day Friday as lawyers scrutinized each juror to determine what they might have heard or read about the Fish case.

According to Modine, the unfortunate timing of Thursday’s arraignment was the result of last-minute plea bargain negotiations breaking down.

“It was an extra hammer for the prosecution to throw that in,” said Modine. “A bargaining chip if you will.”

The verdict was followed by only a brief period of jubilation for Fish and his family, who exchanged tearful hugs from across the gallery bar before Fish was led out of the room by a Missoula police officer. He was remanded to the custody of the Missoula County Detention Center while he awaits his next round of legal battles. No hearing dates have yet been set.